Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
Namely, in the case of Iljazi612 the applicant was charged for trying to bring
into the country 9.5 kg of heroin, purchased from an unidentified seller in
Istanbul, loaded into a cargo area of a truck which belonged to a company
managed and owned by him. The national court found him guilty and
convicted him with 5,3 years of imprisonment for illegal drug trafficking.
The applicant claimed a violation of Article 6 § 3 (d) of ECHR because of
the domestic courts’ refusal to admit the written statements and ensure
presence at trial of witnesses S.B. and T.S., who had apparently stated
that the applicant had neither been personally involved nor observed the
loading of the goods into the truck. The applicant further submitted a
copy of the statements, translated into Macedonian language, since those
statements were being taken by Kosovo authorities (the point where the
goods entered the country), on a request of the national authorities. The
applicant claimed that by doing that the national court has wrongfully
established the case facts.
Although ECtHR reiterated that “the admissibility of evidence is primarily a
matter that is regulated by national law”, and that the purpose of the Court
is ”not to give a ruling as to whether statements of witnesses were properly
admitted in evidence, but rather to ascertain whether the proceedings as a
whole, including the way in which evidence was taken, were fair”, as well
as that Article 6 § 3 (d) “does not require the attendance and examination of
every witness on the accused’s behalf: its essential aim, as is indicated by the
words ‘under the same conditions’, is a full ‘equality of arms’ in the matter”,
the Court has found that “there might be exceptional circumstances which
could prompt the Court to conclude that the failure to hear a person as a
witness was incompatible with Article 6.”613
So, in this particular case the Court found violation of Article 6 §§ 1 and
3 (d) of the Convention since “in the absence of any direct evidence, the
applicant should have been afforded a reasonable opportunity to challenge
the assumption that he had loaded and hidden the drugs in the truck. The
refusal to examine the defence witnesses, at least T.S., led to a limitation of
the defence rights incompatible with the guarantees of a fair trial enshrined
in Article 6.”614
Furthermore, in the case of Duško Ivanovski615 the applicant was sentenced
to two and a half years of imprisonment for illegal drug trafficking. The
applicant was searched on 04 February 2003, without a court warrant
and in the absence of witnesses, as allowed by Law in exceptional
circumstances. The police confiscated 13 keys and a mobile phone from
him. On that same date, an investigating judge issued two warrants for
search of two apartments and other accompanying premises owned by
the applicant’s father (nos. 8 and 9 in the building in which the applicant
Iljazi v. the former Yugoslav Republic of Macedonia, no.56539/08, ECHR, 03.01.2014.
Ibid, § 40.
Ibid, § 47.
615
Duško Ivanovski v. the former Yugoslav Republic of Macedonia, no. 10718/05, 24.07.2014.
612
613
614
132
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